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Mid-town Petroleum, Inc. v. Dine





APPEAL from the Circuit Court of Cook County; the Hon. ARCHIBALD J. CAREY, JR., Judge, presiding.


Plaintiff, Mid-Town Petroleum, Inc., appeals from an order of the circuit court of Cook County which, upon motion of defendant Dennis G. Dine as beneficiary of a trust of which defendant Beverly Bank was trustee, dismissed plaintiff's amended complaint which sought a declaratory judgment as to the validity of a contract and the parties rights and obligations under that contract. The issue on appeal is whether the amended complaint was properly dismissed.

Plaintiff's original complaint alleging an actual controversy sought a declaratory judgment under section 57.1 of the Civil Practice Act. (Ill. Rev. Stat. 1975, ch. 110, par. 57.1.) The complaint alleged that plaintiff gave defendant Dine a real estate sale contract and check which were accepted by defendant through his agent, Arthur W. Main, Jr.; that thereafter defendants performed all the acts of the sellers under the real estate sale contract, including presenting a title report, preparing and delivering a closing statement, obtaining a trustee's deed, giving plaintiff a letter directing payment of the proceeds, giving plaintiff copies of tax and special assessment bills and sending plaintiff letters transmitting the aforesaid papers; that in reliance on defendants' representations, and pursuant to the directions contained in the pay off letter, plaintiff obtained a certified check for the net balance due and delivered this to its attorney; that after being advised the cash to close was available, defendants refused to close the transaction; and that plaintiff is ready, willing and able to close the transaction. Each document mentioned was referred to as an exhibit and was attached to the complaint.

Defendants' motion to strike and dismiss the complaint was granted; however, plaintiff was granted leave to amend. Plaintiff's amended complaint realleged all the allegations made in its original complaint and further alleged that defendant Dine, knowing of the requirements of the said contract and in an effort to complete the transaction, signed and delivered a direction to defendant bank as trustee to convey the real estate; and that in accordance with this direction, defendant bank prepared and delivered to defendant Dine the deed required by him and obtained his receipt. Plaintiff requested a determination as to whether there was a valid real estate transaction between the parties, where plaintiff was entitled to performance of the transaction, and if so, to require that defendants perform.

Defendants filed a motion to strike the complaint and dismiss the action alleging that the amended complaint was an improper application for declaratory judgment since no actual controversy existed between the parties; that the alleged contract was not signed as a corporate instrument by plaintiff corporation and did not reflect acceptance by the party to be charged; that the alleged seller, defendant Dine, was not charged as the title owner; that the contract and check were merely offers to purchase real estate without acceptance by any authorized party; and that the contract was in violation of the Statute of Frauds.

The trial court entered an order dismissing the action for declaratory judgment without stating its reason. It is from this order that plaintiff now appeals.


• 1 An order that sustains a motion to dismiss without specifying the ground upon which it is based places before the reviewing court each issue raised by the motion. (Macie v. Clark Equipment Co. (1st Dist. 1972), 8 Ill. App.3d 613, 615, 290 N.E.2d 912.) Therefore, we must first consider whether the amended complaint for declaratory judgment was sufficient to state a cause of action under section 57.1, and second, whether the action was barred by the Statute of Frauds.


Section 57.1 of the Civil Practice Act provides in pertinent part:

"No action or proceeding is open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any * * * contract or other written instrument, and a declaration of the rights of the parties interested." (Emphasis added.) Ill. Rev. Stat. 1975, ch. 110, par. 57.1.

• 2 Pursuant to the statute, the construction of a contract is a proper subject of inquiry in a declaratory judgment action. (Greene v. Gust (1st Dist. 1960), 26 Ill. App.2d 2, 6, 167 N.E.2d 438; Weary v. School District No. 189 (5th Dist. 1974), 20 Ill. App.3d 37, 39, 312 N.E.2d 764.) However, the statute requires the existence of an actual controversy between the parties before a declaration of rights may be made.

• 3, 4 "Actual controversy" has been interpreted to mean a concrete dispute admitting of an immediate and definitive determination of the parties' rights, the resolution of which will aid in the termination of the controversy or some part thereof. (Underground Contractors Association v. City of Chicago (1977), 66 Ill.2d 371, 375, 362 N.E.2d 298.) The actual controversy requirement was intended to distinguish justiciable issues from abstract or hypothetical disputes (A.S. & W. Club of Waukegan v. Drobnick (1962), 26 Ill.2d 521, 524, 187 N.E.2d 247), thereby preventing courts> from passing judgment on mere abstract propositions of law, rendering advisory opinions, or giving legal advice as to future events (Underground Contractors Association v. City of Chicago).

This court in Gagne v. Village of LaGrange (1st Dist. 1976), 36 Ill. App.3d 864, 866, 345 N.E.2d 108, discussed the ...

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